Madan Gopal vs Kirpal Singh and Others

L.N. Mittal, J.—Plaintiff Madan Gopal has filed the instant second appeal having lost in both the courts below.

Appellant filed suit against Jai Kaur defendant (since deceased and represented by respondents as her legal representatives). Plaintiff and his brothers Puran Chand and Sadhu Ram were owners in possession of the suit property i.e. 97 kanals 16 marlas and a house in equal shares. Plaintiff was aged 10 years in the year 1953 and was, thus, minor. Plaintiffs brothers Puran Chand and Sadhu Ram sold entire suit property including the share of the plaintiff who was then minor to the husband of defendant vide registered sale deed dated 21.8.1953. The plaintiff in the suit challenged the said sale deed alleging that the sale deed qua share of the plaintiff who was then minor was executed by his brother without sanction from the Guardian Court. The plaintiff learnt of the said sale deed on 15.1.2003 only when Mahinder Singh, Gurnam Singh and Chandi Ram contacted the plaintiff for purchase of his share in Shamlat Patti. The plaintiff accordingly sought declaration that he is owner to the extent of 1/3rd share in the suit property. The plaintiff also sought relief of possession of the suit property.

Defendant in her written statement controverted the plaint allegations. It was pleaded that plaintiffs brother Puran Chand executed the sale deed for himself as well as being guardian of the minor plaintiff and also as Karta of Joint Hindu Family. The suit was claimed to be time barred. The defendant also alleged that she has become owner of the suit property by adverse possession. Various other pleas were also raised.

Learned Additional Civil Judge (Senior Division), Pehowa vide judgment and decree dated 5.4.2006 dismissed the plaintiffs suit. First appeal preferred by the plaintiff has been dismissed by learned District Judge, Kurukshetra vide judgment and decree dated 28.7.2008. Feeling aggrieved, the plaintiff has preferred the instant second appeal.

I have heard learned counsel for the appellant and perused the case file.

Sale deed dated 21.8.1953 has been challenged by the plaintiff in the suit filed on 2.12.2003 i.e. after more than 50 years. Consequently, the suit is hopelessly barred by limitation. The sale deed could at best be voidable and not void and even a void document or order is required to be set aside within limitation period. The plaintiff as per his own version was 10 years old in the year 1953. He could have challenged the sale deed within three years of attaining age of majority till the year 1964 when he attained the age of 21 years. However, he filed the suit on 2.12.2003 i.e. 39 years after the limitation period had expired. The plaintiff was aged 60 years when he filed suit. The suit is, thus, hopelessly barred by limitation. Admittedly, the plaintiff never remained in possession of suit land during this entire period. The plaintiff himself admitted that defendant has been in open possession of the suit land throughout considering herself to be owner thereof.

Learned Counsel for the appellant vehemently contended that the appellant learnt of the sale deed dated 21.8.1953 on 15.1.2003 only and the suit is within limitation from the said date. The contention cannot be accepted. The plaintiff could make such averment at any time while filing the suit. No sanctity can be attached to such averment. It cannot be said that the plaintiff was unaware of the impugned sale deed for 50 years. The plaintiff knew that he was original resident of village Mohanpur where the suit land is situated although the plaintiff claimed to have shifted to village Kharindwa in the year 1953 soon after the impugned sale deed. The plaintiff was aged 10 years and it cannot be said that being 10 years old boy, he was not aware that he and his brothers had land in village Mohanpur and that his brothers had sold said land including share of the plaintiff himself. It may be added that village Kharindwa where the plaintiff claimed to be residing is not far away from village Mohanpur where the suit property is situated because both villages are in District Kurukshetra. Consequently, merely on the basis of bald statement of the plaintiff supported by another witness, it cannot be said that the plaintiff was unaware of the sale deed for 50 years and it cannot be said that the plaintiff was not aware that he ever had suit property in village Mohanpur. The plaintiff could not be unaware that they had a house in their native village which had also been sold. Consequently, the plea of ignorance could not be accepted. Both the courts below have rightly negatived the claim of the plaintiff. There is concurrent finding of both the courts below which is based on proper appreciation of evidence and does not suffer from any illegality or perversity warranting interference in this second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is found to be without any merit and is accordingly dismissed in limine.